Ferguson v. Clifford

37 N.H. 86

• Court: Supreme Court of New Hampshire
• Decided: July 15, 1858
• Status: Published

Opinion

Fowler, J.

The evidence offered on the trial to prove the record of the mortgage in Portland, was competent, and properly received. Official registers, or hooks kept by persons in public office, in which they are required to write down particular transactions, or to enrol or record particular contracts or instruments, are generally admissible in evidence, notwithstanding their authenticity is not confirmed by those usual and ordinary tests of truth — the «obligation of an oath and the power of cross examining the persons on whose authority their truth and authenticity may depend. This has been said to be, because they are required by law to be kept, because the entries in them are of public interest and notoriety, and because they are made under the sanction of an oath of office, or in the discharge of an official duty. Books, or records of this character, being themselves evidence, and being usually restricted to a particular custody, their contents may be proved by an immediate copy. When the books themselves are produced, accompanied by evidence that they come from the proper depository, they are received as evidence, without further attestation. Where the proof is by copy, an examined copy, duly made and sworn to by any competent witness, is always admissible. Whether a copy, certified by the officer making the record, or having the legal custody of the book or document — he not being specially appointed by law to furnish copies — is admissible, has been doubted in many eases, but the weight of authority seems to have established the rule, that a copy, given by a public officer whose duly it is to keep the original record, ought to be received in evidence. 1 Greenleaf’s Ev., secs. 483, 484, 498, 507; Burnham, v. Wood, 8 N. H. 334; Woods v. Banks, 14 N. H. 101; United States v. Peechman, 7 Peters 85; Oakes v. Hill, 14 Pick. 448; United States v. Johns, 5 Dallas 415; Forsaith v. Clark, 21 N. H. (1 Foster) 409 ; Pickard v. Bailey, 26 N. H. (6 Foster) 152.

Both the parties resided, and, at the date of the conveyance thereof, the organ mortgaged was located, in Portland, Maine, and no question was made upon the trial that the city-clerk of Portland was the proper person to record and give copies of the mortgage. "When, therefore, it had been shown, by evidence to which no exception was taken, that the persón making the certificate of record upon the hack of the original mortgage, was at the date thereof city-clerk of Portland, the certificate was itself primci fade evidence that the deed was recorded, as therein certified. The, same is true of the copy,- after it had been shown in the same manner that the person certifying it was, at the date of his certificate, city-clerk of Portland. Hastings v. Blue Hill Turnpike, 9 Pick. 83; Banks v. Woods, 14 N. H. 109 ; Fuller v. Rounceville, 31 N. H. (11 Foster) 512.

The mortgage in this case, having been executed and recorded agreeably to the requirements of the laws of Maine, where' the parties to it resided at the time of its execution, and where the property was then located, was valid and effectual to pass and hold the property in that State. The general rule that the law of the place of the contract is to govern as to its nature, validity, construction and effect, has always been recognized in this State, and must be applied to this mortgage. Stevens v. Norris, 30 N. H. (10 Foster) 466; Smith v. Godfrey, 28 N. H. (8 Foster) 379, and authorities there collected. The law of Maine not requiring any oath by the parties to the existence and validity of the debt mentioned in the condition of the mortgage, and secured by it, the mortgage was valid there without such oath. It will he enforced here, although not recorded in this State, as a matter of comity, because it was valid by the laws of the place of its execution, and continued in force under those laws, until the property on which it operated was brought into this jurisdiction. Smith v. Godfrey, 28 N. H. (8 Foster) 382; Story’s Conflict of Laws, sec. 244 ; 2 Kent’s Com. 458 ; Sessions v. Little, 9 N. H. 271; Offut v. Flagg, 10 N. H. 49, 50, 51; Smith, v. Moore & al., 11 N. H. 55.

The defendant, having shown that he took the organ by virtue of a writ founded upon a debt of the mortgagor, existing at and prior to the date of the execution of the mortgage, it was incumbent upon the -plaintiff to prove by competent evidence that the mortgage was made for a good, valuable and sufficient consideration. The acknowledgement of a consideration received, contained in the deed itself, was no evidence against the defendant. Kimball v. Fenner, 12 N. H. 248.

The testimony of Hayes, the debtor, was that he owed the plaintiff the amount of the note, at the time the note and mortgage were made, and had paid nothing since. To this was added that of O’Donnell, that, prior to the date of the mortgage, the plaintiff left in his office for collection various claims against Hayes, of which he gave him notice; and that subsequently the parties met at his office, and, after some dispute about items, the note secured by the mortgage was finally given, as evidence of the amount actually due and owing from Hayes to the plaintiff, upon an adjustment of the mutual demands previously subsisting between them. If this did not amount to the full and satisfactory proof required in a conflict of claims between two creditors for payment of their respective debts out of the same property of their debtor, it was undoubtedly evidence, competent to be weighed by the jury, and from which they might well find that there existed a full and sufficient consideration for the plaintiff’s mortgage. Aiken v. Kilbourne, 27 Me. (14 Shepley) 252.

It is a sufficient answer to the objection, that the plaintiff’s own evidence showed that, by the laws of Maine, controlling the contract of mortgage, the suit was prematurely brought, to say that this was purely a question of fact for the determination of the court. Foreign laws are to be proved as facts, by evidence addressed to the court, and not to the jury. If the testimony of O’Donnell related to the statutes of Maine, it was entirely incompetent to prove them. If it referred to the unwritten laws, judicial decisions, customs or usages of that State, its weight and credibility, as well as its applicability to. the case in hand, were matters for the consideration of the court; and the court having found, as matter of fact, that no such rule of law governing the contract of the parties existed in Maine, and so instructed the jury, there is no occasion for disturbing the verdict, unless it be shown that the court were wrong in the conclusion at which they arrived. Story’s Conflict of Laws, secs. 638, 639, 640, 641, 642; 1 Greenleaf’s Ev., secs. 486, 487, 488; Pickard v. Bailey, 26 N. H. (6 Foster) 152.

No attempt has been made in the defendant’s argument to show that there exists in Maine any statute, judicial decision, or other law, custom or usage, prohibiting the mortgagee from maintaining an action for the wrongful conversion of personal property mortgaged to him, before the maturity of the note to secure the payment of which the mortgage is given. On the contrary, the authorities cited by the plaintiff, and many others, seem to be conclusive that no such law exists in that State. O’Donnell must then have been entirely mistaken in his testimony, or have perverted a decision, that where a personal mortgage provides for the retention of the possession of the mortgaged property by the mortgagor for a given time, the mortgagee cannot maintain replevin therefor before the expiration of the stipulated period, into one holding that where the note secured by such mortgage is payable on time, the mortgagee is remediless as to any injury to the mortgaged property before the maturity of his note. The decisions in Maine are entirely clear, that there, as in this State, where no agreement to the contrary exists, the execution of the mortgage vests the title and right to the possession of personal property in the mortgagee; and such was the finding of the court below. Pickard v. Low, 3 Shepley 48; Ingraham v. Martin, 3 Shepley 373; Paul v. Hayford, 22 Me. 234; Welch v. Whittemore, 25 Me. 86; Whitney v. Lowell, 33 Me. 318.

In the present case, the right of possession, by the provisions of the mortgage, was not in the mortgagee until actual demand made. But there is nothing to indicate that demand might not be made as well before as after the maturity of the note, or condition broken. In the absence of any provision on this subject, the mortgagee would have had the right to immediate possession, with or without demand, before as well as after the condition broken. The provision in its terms gives to the mortgagee the legal possession so long and so long only as the mortgagee refrains from demanding it; and the effect of it is merely to restrain the mortgagee from taking possession, as he otherwise might lawfully do, until he should make actual demand of the organ. When, therefore, the attorney of the plaintiff, in his name and by his authority, before the commencement of this suit, demanded the organ of the defendant, the terms of the provision were complied with, and the right to possession vested in the plaintiff under the mortgage.

It is contended that there was no sufficient evidence of any conversion of the organ by the defendant, since the attachment and sale of Hayes’ equitable interest in the organ, as mortgagor, were authorized by the Revised Statutes of Maine, chap. 117, sec. 40, and there was no removal of the property from the custody of the plaintiff’s agent, or other interference with his right of possession, after demand made by his attorney therefor.

That the rights of parties, under a contract for the sale or conveyance of property, are to be tested by the laws of the government where the sale or conveyance was made, as a general proposition is unquestionable. Smith v. Godfrey, 28 N. H. (8 Foster) 379, and cases cited. The validity and effect of the mortgage in this case, therefore, in all inquiries as to the rights of the parties under it, are to be determined by the laws of Maine. But, while the lex loci thus governs in all questions touching the contract, the rights of parties in pursuing remedies upon it, or in enforcing claims growing out of it, or other claims against its subject matter, are to be determined by the laws of the country where those rights are sought to be enforced. "What property is liable to attachment, and what are the proper modes of proceeding in making the attachment upon process within this jurisdiction, are to be determined entirely by our laws. Remedies are regulated exclusively by the law of the place where they are prosecuted. -

The attachment of the organ by the defendant, as the property of the mortgagor, was rightful under the laws of this State. By the express provisions of chap. 184, secs. 15 and 16 of the Revised Statutes, personal property mortgaged may be attached as the property of the general owner, and may be held, without payment or tender of the mortgage debt, until the mortgagee shall, upon demand made therefor by the officer or attaching creditor, render an account under oath of the amount due upon the mortgage debt. If, therefore, the attachment by the defendant had been followed by a demand upon the plaintiff for such an account, neither the proceedings of the defendant in making the attachment, nor his refusal to deliver up the organ upon demand of the plaintiff’s attorney, would have constituted any conversion or evidence of conversion, until the account had been rendered within the time limited by the statute. It would be no conversion, or evidence of a conversion, for an officer to refuse, upon demand made by the mortgagee, to surrender property which he had taken into his custody by attachment, if, having demanded such account, he were awaiting the rendition thereof by the mortgagee during the fifteen days given him by the statute for that purpose. But if, the attachment having been made, the mortgagee demand the property, and the officer, without making, or having made, or giving notice of any intention to make, a counter demand upon him for such account, refuse to surrender the property, such demand and refusal constitute evidence of a conversion. Nor is it necessary in such case to show that after the demand there was any intermeddling with the property, beyond that imported in the previous attachment. A conversion, in the sense of the law of trover, consists either in the appropriation of the thing to the party’s own use and beneficial enjoyment, or in its destruction, or in exercising dominion over it in exclusion or defiance of the plaintiff’s right, or in withholding the possession from the plaintiff under a claim of title inconsistent with his own. By the attachment, the defendant assumed control and authority over the organ, in exclusion or defiance of the plaintiff’s right. Hayes testified that he took it into his actual possession. By the refusal to deliver, on demand made, he withheld the possession under a claim of title, which was, under the circumstances of the case, inconsistent with the plaintiff’s. Their acts constituted a direct conversion of the property. White v. Phelps, 12 N. H. 382 ; Hyde v. Noble, 13 N. H. 494; Flanders v. Colby, 28 N. H. (8 Foster) 34; Bartlett v. Hoyt, 33 N. H. 151. Nor was any demand necessary, but for the provision of the mortgage. It was only requisite to enable the plaintiff to avail himself of the defendant’s wrongful interference with the property, as the ground of action, which he could not do so long as he acquiesced therein without actual demand of the organ. Scott v. Whittemore, 27 N. H. (7 Foster) 309; Hill v. Wiggin, 31 N. H. (11 Foster) 292.

The evidence showed an attachment on the 28th of November. The suit was commenced on the 6th of December following. There was no demand made, attempted, or even contemplated by the creditor or officer, upon the plaintiff for an account of the amount due upon the mortgage debt. The defendant, and the creditor for whom he acted, denied entirely the validity of the plaintiff’s mortgage. They insisted that it was fraudulent and void as to creditors, and that, notwithstanding its execution, the mortgagor continued the actual and absolute owner of the organ. Under these circumstances, it is idle to contend that the defendant was holding the organ under the statute of Maine, had its provisions been such as the defendant contends they were, and had it been in force in this State. Nor, upon the uncontroverted evidence of a demand and refusal, can there be any doubt of the competency and sufficiency of the proof of a conversion.

It is in no way material that the organ remained in the church, and was not actually in the possession of the defendant at the time of the demand by the plaintiff’s attorney. The defendant, having taken the organ from the control of Hayes, attached, and returned it as attached on the writ, and refused to deliver it up, or relinquish his claim upon it, on demand made and an exhibition to him of the mortgage and mortgage debt, cannot escapediability by showing that he had not at the moment of the demand the actual control or personal custody of the instrument. It was legally in his possession; he had taken it from Hayes, never returned it, and even then refused to give it up.

Admitting the evidence to have shown a delivery of the organ to Lawrence by Hayes, under the contract for its sale, we think it was properly left to the jury to find, upon all the evidence before them, whether the sale to Lawrence was completed so as to pass the property to him. The price not having been paid, and no evidence being offered tending to show any understanding or agreement that credit was to be given, the court would not have been justified in holding, as a matter of law, that the sale was completed so as to pass the property. The general rule in such cases is, that the price must be paid before the property will pass, although conditional delivery may occur. If delivery take place, where payment is expected simultaneously therewith, it is in law made upon the condition precedent, that the price shall forthwith be paid. If this condition be not performed, the delivery is inoperative to pass the title to the property, and it may be instantly reclaimed by the vendor. Delivery, without any thing being said, is not necessarily absolute. It is evidence of a waiver, and, with other circumstances, may be sufficient to authorize a jury to find a waiver of the precedent condition of payment of the stipulated price. 1 Parsons on Contracts 448 ; 2 Kent’s Com. 497; Chitty on Contracts 375, a; Luey v. Bundy, 9 N. H. 302 ; Clark v. Draper, 19 N. H. 419.

As, therefore, upon the reported evidence in the case, the court could not properly have ruled, as a matter of law, that the sale to Lawrence was perfected so as to pass the property to him, it is not for the defendant to complain that it was left for the jury to determine, under suitable instructions, whether there was evidence authorizing them to find, as matter of fact, that the sale was complete. It gave him an opportunity to discuss the evidence, and its possible tendencies, before a tribunal not accustomed to sanction any proceeding calculated to hinder, delay or prevent creditors from obtaining payment of their debts out of the property of their debtors. The jury having found that the sale was not completed, that finding is conclusive.

The only remaining objection relates to the admissibility of the letters of Lawrence as competent evidence on the question of value. Those letters show an offer by Hayes to sell the organ for a specified sum, an acceptance of that offer by Lawrence, and the assent of Hayes to the acceptance. Other evidence showed Hayes to have been authorized by the plaintiff to sell the organ, as his agent, for the price agreed upon, the transportation of the instrument from Portland to Epping, in pursuance of the contract between Hayes and Lawrence, and its being put in order for use at the latter place, in further pursuance of the same contract. In connection with the other evidence in the case, the letters show an authorized offer to sell, an acceptance of that offer, constituting together a valid contract of sale, and a ratification of that contract by the vendor, by his performance of every thing necessary to be done on his part, except formally to pass over the property by delivery on the receipt of the purchase money. Indeed, it may well be said that nothing remained to be done to perfect the sale, except the payment of the purchase money. Under these circumstances, had the price agreed to be paid any legitimate tendency to show the value of the organ ? In other words, where there is no suggestion that every thing is not done in perfect good faith, is the price agreed to be paid for an article, by the expi’ess terms of a valid contract of sale, deliberately entered into and so far perfected that the article has been transferred from the l’esidence of the vendor in one State, to that of the vendee in another, and there set up and put in order for use, pursuant to the stipulations of such contract, and nothing remains to be done but formally to pass over the * property on the receipt of the purchase money, when the completion of the sale is prevented by an attachment of the article by an officer, competent to be considered and weighed by a jury, in determining the value of such article at the time of its attachment ? We think it must be. We are aware that a mere offer to purchase is not competent evidence of value. But here was not a mere offer to buy. There was a valid contract of sale, deliberately made upon full consideration and correspondence, and so far executed that the defendant contended upon the trial, and still insists, that, upon the clear and undisputed facts of the case, the sale was, in point of law, absolutely complete, so as to pass the title of the property to the contracting vendee.

It may be regarded as well settled in this State, that the price paid on the sale of property, in the vicinity and about the same time, similar to that whose value is to be determined by the jury, is competent for their consideration. White v. Concord Railroad, 80 N. H. (10 Foster) 188; Whipple v. Walpole, 10 N. H. 131.

It seems to us that the price, actually and in good faith agreed to be paid for the identical property in controversy, at the very time, under a contract for its sale, deliberately and considerately entered into, partly executed, and so nearly completed, that it is a matter of serious argument whether it were not in law absolutely perfected, cannot be less competent to be weighed by a jury; not as conclusive evidence of value, but as tending to show the probable worth of the property thus contracted to be sold. Hayes testified that he sold the organ to Lawrence by letter. The letters were part of the contract of sale — part of the res gestae, and as such admissible, and competent to be considered on the question of value. All the objections taken being overruled, there must be

Judgment on the verdict.